The Hindu The tribal busy at a paddy field at the foothills of Niyamgiri Hills in Kalhandi district of Odisha. In the background Vedanta Aluminium factory can be seen. A file photo: Arunangsu Roy Chowdhury.

Ignoring objections by the Union Ministry of Tribal Affairs, the Odisha government on Friday announced dates for conducting Gram Sabhas in 12 villages of Kalahandi and Rayagada districts to decide fate of the proposed bauxite mining for Vedanta atop Niyamgiri Hills.

“We have decided to hold Gram Sabha in 12 hill slope villages as per the April 18 Supreme Court order. While Gram Sabha will be held between July 18 and August 19 in seven villages of Rayagada district, similar exercise will be done between July 23 and 30 in five villages of Kalahandi district,” Odisha’s ST and SC development minister L B Himirika told reporters in Bhubaneswar.

To a question, Mr. Himirika said the state government had earlier decided to hold Gram Sabha in 12 limited villages and it would implement it. “We are going by the Apex Court’s order,” Mr. Himirika said sidestepping a question on the MoTA’s objection.

On April 18, the Supreme Court order asked the state government to hold gram sabhas to decide the fate of Vedanta’s plan to mine at Niyamgiri.

“We need at least 50 per cent attendance to conduct a gram sabha. One-third of them should be women. If quorum is not achieved, the gram sabha will be cancelled and conducted later,” Rayagada district collector Sashi Bhusan Padhi said.

Meanwhile, Odisha’s Advocate General (AG) in a report supported the state government’s decision in 12 hill slope villages of Niyamgiri. The state government had sought Law department and AG’s views on objections raised by MoTA.

Earlier, Union Minister of Tribal Affairs V Kishore Chandra Deo had said that limiting Gram Sabha proceedings to only 12 villages was not in accordance with the Supreme Court order dated April 18 and directions issued by the ministry under Section 12 of Forest Right Act (FRA).

Mr. Deo had also written a letter to Governor S C Jamir seeking his intervention in the matter, saying the areas where gram sabhas are proposed to be held fall under Schedule V categoty.

“The list of villages where rights of forest dwellers are guaranteed under the FRA or where cultural and religious rights are likely to be affected cannot be arbitrarily decided by the state government. It is to be decided by the people (Palli Sabha) where claims would be filed through a transparent manner so that no genuine Gram Sabha which has a legitimate claim is left out of the process. This is in line with Para 59 of the apex court judgement,” Vibha Puri Das, secretary, MoTA, had written to the state chief secretary recently.

The Ministry clarified that it had received several claims under FRA for various rights, including religious and cultural rights claimed over Niyamgiri forests and sacred areas from villages over and above the 12 villages selected by the state government.

It shows that Niyamgiri forests are shared by not just 12 villages, but many other villages in Kalahandi and Rayagada districts too share religious and cultural rights over Niyamgiri, the ministry observed.

Referring to Para 53 and 54 of the Supreme Court (SC) judgement, the MoTA letter said, “Such observations cannot be interpreted to assess the number of villages that need to be considered for recognition and vesting of claims under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Right) Act-2006.”

The Supreme Court in its order had directed the state government to complete Gram Sabhas within three months to get the mandate of the local people regarding the mining project.

The judgement had also called for considering all claims on community, individual, cultural and religious rights of the local inhabitants.

On July 5 2011, a Bench of Justice B Sudershan Reddy and Justice SS Nijjar of the Supreme Court delivered what is widely regarded as a landmark judgement, banning Salwa Judum by any name, and disbanding and disarming special police officers (SPOs) who had been responsible, along with security forces, for many human rights violations.

The only activity that the erstwhile SPOs would be permitted was traffic and disaster management, and that too, only if they were innocent of any crimes.

The court ordered that criminal investigations and prosecutions be initiated in Chhattisgarh. Earlier that year, they had also directed that the security forces vacate all schools and ashrams, with the aim of restarting schools in the villages.

The Bench asked the CBI to investigate the March 2011 rapes, murder and arson in Tadmetla and neighbouring villages and subsequent events in which Swami Agnivesh was attacked while trying to deliver relief.

As Justice Reddy (now retired) said in a recent interview, had the Supreme Court’s orders been implemented, perhaps the May 25 attack could have been avoided. However, far from obeying the court, the governments in Chhattisgarh and the Centre have done everything possible to flout the order.

The Union of India attempted to have the order overturned through a review petition, but succeeded only in having it limited to Chhattisgarh. The government of Chhattisgarh responded by renaming all the SPOs, ‘armed auxiliary forces’ with effect from the date of the judgement, and giving them automatic weapons and higher salaries.

Schools are still occupied, no prosecutions have taken place, no victims of the violence perpetrated by Salwa Judum have received any compensation, and the CBI enquiry is still incomplete.

The CBI first visited Tadmetla in January 2012. In February, the Maoists killed one of the former SPOs, Kartam Surya, who had been accused of rape, and whom the state had been staunchly defending inside and outside court.

The SPOs then physically attacked the CBI team. They have now decided to conduct their enquiry out of Jagdalpur. In May this year, the villagers travelled 400 km to depose, including old men and breastfeeding mothers, leaving aside their annual tendu patta earnings.

The state government continues to stall all mention of a joint monitoring committee led by eminent independent persons, which alone can ensure that FIRs are registered, compensation given and some degree of normalcy restored.

In March 2012, the petitioners filed a contempt petition. There have been 13 listings since, but not one hearing. On six occasions, we sat in court but the matter was not heard because other cases before it took up all the time.

The matter was adjourned four times because despite asking and being given a ‘non-miscellaneous day’ by the court, the listing branch of the Supreme Court assigned it to a miscellaneous day. (Tuesdays to Thursdays are non-miscellaneous days, where matters can be heard properly while Mondays and Fridays are frenzied because a large number of fresh matters are considered for admission).

On three occasions, when everything was right — it was a non-miscellaneous day and our turn had come — Chhattisgarh’s counsel bought time on technicalities.

The only people to have benefitted from the Supreme Court litigation so far are the SPOs and the lawyers for the Chhattisgarh government, who have made lakhs in fees for delaying justice to starving adivasis.

Chhattisgarh’s litigation strategy is also to keep filing affidavits with the same data, but under different annexure numbers, in order to mislead the court. On the other hand, the lawyers for the petitioners, Ashok Desai and Nitya Ramakrishnan and their juniors, have put in years of pro-bono work (seven years already and still counting), at considerable personal cost.

Sumita Hazarika as the advocate on record (AOR) has gracefully filed endless affidavits. Our co-petitioner Kartam Joga suffered two-and-a-half years in jail on false charges, before being acquitted earlier this year.

My years of court observation have instilled an enormous respect for the judges whose daily workload involves reading voluminous briefs and listening to a series of complicated matters.

There has to be a system which is less cruel to them, as well as to PIL lawyers and ordinary litigants, such as more reliance on written documents and limited time for arguments, as is the case in other countries.

No litigant from outside Delhi can afford to keep coming for hearings. And no adivasis on their own could afford to fight such battles in the Supreme Court.

The security forces killed 25 innocent villagers, including several children, in two separate attacks — Sarkeguda in June 2012 and Edesmetta in May. The Maoists kidnapped Alex Menon, the district collector of Sukma, in March 2012, and killed 27 Congress leaders and workers in May.

Unless there is a breakthrough of some kind, there is no prospect of peace. Implementing court orders will not resolve everything but justice goes much further than anything else.

What is surprising is not that adivasis support the Maoists against the police. What is inspiring is how adivasis continue to believe in justice, to send letters to the court, to attend CBI hearings.

Hope is the hardest thing to extinguish in the human heart, and justice is the gossamer thread that binds people to the State.

Justice Sathasivam, who will take over as the country’s Chief Justice on July 19 from the incumbent, Justice Altamas Kabir, felt that members of the SCs, STs and OBCs could be elevated to the higher judiciary by giving them certain concessions in the appointment process, provided they fulfilled minimum requirements.

In an interview with The Telegraph here today at his residence, Justice Sathasivam said that such an arrangement would go a long way in assuring all sections of the society that their well-being was taken care by the country, irrespective of their social moorings.

“Yes, you are correct. We need to have some sort of reservation and representations for SCs, STs and OBCs. But at the same time we cannot ignore the minimum standards which are already in vogue for appointment. It does not mean we have to select a person far junior or who lacks merit. But we have to give them some concession,” the judge said.

“But they must satisfy the minimum requirements. It is in our (judges) mind. You can also say it is in my mind. I am anxious that persons from SC, ST and OBCs are appointed. Of course, there are members of the OBCs who are already in the higher judiciary,” Justice Sathasivam said in response to a query.

Although not specifically related to the ongoing tussle between the Bengal government and the state election commission on the former’s plea to re-schedule the panchayat polls in view of the Ramazan month, the Chief Justice-designate said courts and the election commission have to take note of public sentiments.

Refraining from directly commenting on the Bengal situation, Justice Sathasivam said: “Normally, the courts and the election commission have to take note of the sentiments of the people if the majority of the people feel inconvenienced. For example, during the Ramazan month, many employees leave their offices early. Even judges leave the courts early… that is because a devout Muslim is not allowed even to swallow his saliva. So we can’t have rigid rules or any straitjacket formula for such an issue. It all depends on the facts of each case.”

He rejected the government’s bid to bring in a judicial appointments commission to replace the present collegium system. Justice Sathasivam said the government could not claim that it would have its own representatives in the judiciary.

“The government cannot include their names as, by and large, the high court and the Supreme Court collegiums keep everything in mind while giving representations to all sections. Law officers like advocates-general, additional advocates-general, central government law officers, government pleaders are provided representation in the appointments,” he said.

The Chief Justice-designate agreed with a suggestion that judges of the Supreme Court should have a cooling period before accepting post-retirement jobs in tribunals like TDSAT (the Telecom Disputes Settlement Authority Tribunal), CAT (the Central Administrative Tribunal), NCDRC (the National Consumer Disputes Redressal Commission) to insulate the judiciary from allurement from political executives.

Conceding that the judiciary was not 100 per cent free of corruption, Justice Sathasivam said that the institution was still transparent unlike other wings like the legislature and the executive.

He pointed out that if a presiding judge in a subordinate court passed an order on the basis of some extraneous considerations, it was liable to be set aside by the higher judiciary — a remedy not available to the citizens before the other wings of the government.

The bulk of development policies, justified in the ‘national interest’, actually diminish poor people’s ability to control and gainfully use natural resources. Every ‘national’ project is presented as beneficial for the masses even though it requires some poor people to surrender their land or their livelihood. While the ‘greater good of the nation’appears to be a laudable cause, it must appear suspicious to the rural poor who are consistently chosen, time and time again, to make all the sacrifices, while those more powerful reap the benefits. – Amita Baviskar, In the Belly of the River

There is a common message emanating from the centers of power in Washington, D.C. and New Delhi: Whistle blowing, or truth telling as the act may be more accurately described, is not a welcome activity. As I write this, officials in the United States are searching all over Hong Kong for Edward Snowden, the high school dropout, who revealed the U.S. National Security Agency’s surveillance programme. Proving its status as a loyal ally of the United States, the United Kingdom warned airlines not to fly Snowden to Britain. In the meanwhile, the trial of Bradley Manning, the most famous truth teller in the United States, started in Maryland, USA.

Kakrapar was originally considered as a potential site for a nuclear power plant in the 1960s but then rejected. The reason given then was that there was a large population within the exclusion area and the site was close to a major source of water used for drinking and cultivation (For more on the criteria used for reactor siting, see pp. 44-46 of The Power of Promise). In addition to the population, another problem with the Kakrapar site was that it was in a low-lying area, prone to flooding. This was of particular concern because the site was close to the Ukai Dam and it was conceivable that the whole reactor might get flooded.

In 1980, however, the Atomic Energy Commission announced that Kakrapar was to become the fifth nuclear power station and the two reactors there started commercial operations in 1993 and 1995. Of course, neither of the problems originally cited had changed. If anything, the population in the area had only increased, both naturally and because of various construction activities.Though some amount ofearth-fillingwas done to avoid flooding, things didn’t turn out so well.

The outlet from the turbine building of KAPS leads to an artificial lake called Moticher, which has gates to control the flow of water. On 15 and 16 June 1994, there were heavy rains in South Gujarat andthe water level of the lake began to rise. The ducts thatwere meant to let out water ended up becoming conduits for water to come in. And since there were no arrangements either for sealing cable trenches and valve pits, they too allowed water to enter. Water began entering the complex on the night of 15 June and by the next morning, there was water in the turbine building as well as other parts of the reactor complex. The workers inthe morning shift had to swim in chest-high water, and the control room was reportedly inaccessible for some time. Finally, a site emergency was declared and workers were evacuated.

By this time, another problem had become apparent. The gates that could control the flow of water into Moticher had not been well maintained, and so, mud had collected around them and they could not be opened. The KAPS management requested help from the district and state authorities, but that evidently didn’t help either. Fortunately, villagers from the area, who were worried about the security of their own homes, made a breach in the embankment of the lake that allowed the water to drain out. Finally, on 18 June, a large pump was brought to Kakrapar from Tarapur, and the work of removing the water from the turbine building began.

In the meanwhile, much of the equipment in the turbine building was submerged, including the water pumps used to cool the reactor core. Electrical power from the grid failed, and diesel generators had to be used. Fortunately, the reactor had been shutdown following the major fire at the Narora for inspection of turbine blades. The floodwater carried away canisters of radioactive waste, and it is not clear if they were ever recovered or if any of them released its contents into the waters.

This is where Manoj Mishra comes in. NPCIL officials evidently did not bother to inform members of the public about what happened. The way the public got to know anything about the damage at KAPS was because Mishra wrote a letter to Gujarat Samachar about what happened. For this revelation, Mishra was suspended and, after an internal inquiry, removed from service in March 1996. Since then, Mishra has been fighting the nuclear establishment in courts—and losing. This process of fighting in the courts took him to the Gujarat High Court, which, in 2007, dismissed his case. Mishra then appealed to the Supreme Court, and in April of this year, the SC dismissed his appeal. Itsobservations are worth quoting at some length:

“it will be apposite to notice the growing acceptance of the phenomenon of whistleblower.A whistleblower is a person who raises a concern about the wrongdoing occurring in an organisation or body of people. Usually this person would be from that same organisation. The revealed misconduct may beclassified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organisation) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues)…

“In our view, a person like the respondent can appropriately be described as a whistleblower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such a person by invoking Articles 129 or 215 of the Constitution or the provisions of the Act…

“In our opinion, the aforesaid observations are of no avail to the appellant…the appellant is educated only upto 12th standard. He is neither an engineer, nor an expert on the functioning of the Atomic Energy Plants. Apart from being an insider, the appellant did not fulfill the criteria for being granted the status of a whistle blower. One of the basic requirements of a person being accepted as awhistle blower is that his primary motive for the activity should be in furtherance of public good. In other words, the activity has to be undertaken in public interest, exposing illegal activities of a public organization or authority. The conduct of the appellant, in our opinion, does not fall within the high moral and ethical standard that would be required of a bona fide whistle blower.”

There are many questions that we should ask. First, in what way is the education level of Manoj Mishra relevant to deciding if he was a whistle blower, and why should any whistle blower be an expert on whatever it is that he or she is revealing the truth about? If someone reveals that a pharmaceutical company is producing contaminated drugs meant to treat cardiac problems (Such things do happen, see for example), does that person have to be an expert on how pharmaceutical plants operate? Or should he or she be a doctor with many years of experience in treating heart disease? Second, what might have happened if Mishra had actually been an expert in the operation of atomic power plants? Well, we can only speculate. But remember that for Mishra to become an expert, he would necessarily have to have spent several years at the DAE’s training school, during the course of which he would likely not just have learnt about nuclear reactor physics and engineering, but also become indoctrinated to trust authority and support the NPCIL and DAE policies of secrecy unquestioningly. This is a potential reason for the paucity of truth tellers from the upper echelons of the DAE or NPCIL. Or most other hierarchical organizations, for that matter. Third, what exactly is the public interest in this case? It is clear what the interest of NPCIL and DAE would have been—to hide the news that its design and its maintenance were inadequate to protect against even moderately severe floods. But, for the public, it would be just the opposite: to hear about what happened within KAPS during the floods, so they know what risks they faced.

Why then did the Court argue otherwise? Of course, we cannot know for sure. But some clues can be had from the other recent Supreme Court judgment. This decision dismissed a plea seeking to halt the commissioning of the Koodankulam nuclear reactors, under construction in Tamil Nadu, till the implementation of key additional safety measures recommended after the Fukushima accidents of 2011.

As is well known, the massive release of radioactive materials from the reactors at Fukushima Daiichi, which has resulted in the contamination of a large swath of area and is now estimated to lead in the long run to something on the order of a thousand cancers, also added to the already strong opposition among people living around Koodankulam. What the Supreme Court decided, in essence, was that these people will now have to put up with such “minor inconveniences”, “minor radiological detriments” and “minor environmental detriments”.

The Court’s opinion is replete with references to the public interest. “While setting up a project of this nature, we have to have an overall view of larger public interest rather than smaller violation of right to life guaranteed under Article 21 of the Constitution”. Elsewhere, “Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21”. It went on further to say, “Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution…it will only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act”. And so on, and so forth.

What’s important about this decision is that the Judges’ idea of public interest seems to be based largely, if not completely, on testimony offered by various arms of the nuclear establishment. The decision,in essence, neglects the numerous pieces of expert testimony submitted by the petitioners questioning various aspects of the government’s wisdom in building nuclear reactors in general, including at Koodankulam. For this reason, if the Supreme Court decision was meant to help settle the contentious debate over Koodankulam, it has not, and cannot, succeed in this aim. The reliance on expert testimony from within the nuclear establishment demonstrates myopia on a very basic issue – the lack of public trust regarding thenuclear establishment.

But back to the basic point: arguments made by powerful institutions about the public interest often hide a more divisive reality: it is hard, if not impossible, to come up with a clearly defined and widely accepted notion of public interest that can apply to a large range of areas. [See Robert Jensen’s arguments on a related theme, the national interest, albeit in a different context]. More important, even if there might besome common public interest (“clean air”, for example), trying to actually reach that common interest usually involves having those goals be negotiated through power struggles, and the imposition of hardship to one disadvantaged group or the other.

The Slovenian philosopher Slavoj Zizek once wrote: “It is indeed true that we live in a society of risky choices, but it is one in which only some do the choosing, while others do the risking.” To this one may add, those who have the power to choose often make choices that are beneficial to them but have become adept at passing off those choices as being in the public interest. Whistle blowers seem to care more for those suffering the consequences, real or potential, than the interests of the powerful elite. We, at least those of us who do not belong to these exclusive elite enclaves of power, owe these whistle blowers a huge debt of gratitude.

NBA PR: 28th June 2013Jeevan Adhikar satyagraha and Upwaas begins with demand for rehabilitation and resettlement

Thousands of oustees affected by the Indira Sagar, Omkareshwar, Maheshwar, Upper Beda and Man dam demonstrated in capital city Bhopal today and began their Satyagrah. Despite continuous rain in the entire Narmada valley, over 8000 men and women displaced persons have reached Bhopal to camp here for the next 5 days. The affected people demand that all the oustees of these dams should be rehabilitated and resettled with land and all other entitlements, and the injustice being wreaked on them for decades be stopped. Shri Alok Agarwal, senior activist of the Narmada Bacahao Andolan along with 4 men and women oustees have started their fast for 5 days in this “Narmada Jeevan Adhikar Satyagraha and Upwaas”.

Thousands of oustees marched from Yadgaar –e – Shahjahani Park through Moti Masjid, and gave a Memorandum to the Chief Minister in front of Kamla Park, and then moved to Neelam Park to begin their satyagraha and upwaas. For five days during the “Narmada Jeevan Adhikar Satyagraha and Upwaas”, Narmada Bachao Andolan activist Shri Alok Agarwal, along with Omkareshwar dam oustees Sakubai and Kalabai, Maheshwar dam oustee Bhagwati bai, and Indira Sagar dam oustee Shri Kishor Chauhan would be on fast and they have already begun their fast.

It is noteworthy that as per the common R&R Policy of the Government of Madhya Pradesh for the oustees of the Omkareshwar, Indira Sagar, Maheshwar, Man and Beda dams, the oustees have to be allotted land and other benefits of the R&R Policy, and resettled well before submergence. But there was no compliance with the R&R Policy, because of which the oustees reached a pitiable state. In its Order and judgment dated 11.05.2011, the Supreme Court gave a finding that the State Government had not offered land to even a single oustee, and had not fulfilled any of its obligations under the R&R Policy, because of which 89% of the displaced farmers could not purchase any land. The Supreme Court directed that the R&R Policy must be strictly followed for all these dams. However the thousands of oustees of these dams have been denied their rights under the R&R Policy, especially the right to be allotted land with a minimum of 2 ha. of irrigated land.

Recently, the State Government has announced a grant of Rs. 2.5 lakhs to the landless families of the Omkareshwar dam. But the condition that the landless families would have to break their houses by the 15th of July in the middle of the monsoons in order to obtain the grant was both inhuman and impossible. It is clear that this condition must be immediately set aside. It is also noteworthy that the additional package of Rs. 2 lakhs per acre announced by the Chief Minister for the farmers of the Omkareshwar dam is not for an entitlement of 5 acres or at market value of land. Because of this, the displaced farmers will not be able to purchase land for land with a minimum of 2 ha. of land, as per the R&R Policy.
The State Government has also not provided any land for the landholders or grant for the landless families of the Indira Sagar, Maheshwar, Man and Veda dams, and these rights remain to be provided.

The oustees of these dams have lost their homes, villages, lands, and culture and have been completely pauperized. Their demand is:
1. The farmers of the Omkareshwar, Indira Sagar, Maheshwar, Man and Beda dams must be provided land to the extent of land acquired, with a minimum of 2 ha, of land, or they should be assisted to purchase these entitlements.
2. Every landless family of each of these dams should be provided Rs. 2.5 lakhs, and a time period of 6 months after providing this grant for the purchase of productive assets.
3. All R&R entitlements to be provided before submergence and displacement.
4. Those persons who have lost lands, but whose houses have not submerged, their houses should be acquired and the concerned families rehabilitated.
5. The 41 villages of the Indira Sagar project whose back-water survey has not been carried out, the back-water survey must be done, and the necessary lands and properties acquired and the villagers rehabilitated and resettled.
6. People of New Harsud resettlement site are suffering enormously because of lack of employment. Immediate arrangements for their employment must be made.
7. The lands of five villages of Dewas namely Dharaji, Kothmir, Narsinghpura, Nayapura and Guwadi who are affected by the Omkareshwar dam must be acquired and the villagers rehabilitated and resettled.

Thousands of oustees are resolved that they will take their rights and entitlements at any cost. Their slogan is that “Give us rehabilitation and land. Else empty the dam.”

The decision to permit raising of the height of the Sardar Sarovar Dam from the present height of 122 mts to the final height of 138.68 mts, as per the news published in the Times of India, has been taken by the Resettlement and Rehabilitation Sub Group of the Narmada Control Authority (NCA) on 26th June. This is supposed to have been done on the basis of the reports by the 4 states, including Madhya Pradesh, Gujarat and Maharashtra, confirming, that ‘rehabilitation is complete’. All this is absolutely unbelievable and unacceptable since there are more than 40,000 families in the 245 villages in the submergence area spread across three states, but the maximum (193) are in Madhya Pradesh alone.

There are at least 4,000 families in M.P. and about 1,000 in Maharashtra who are yet to receive alternative agricultural land as per the eligibility. Thousands of landless including agricultural labourers, fish workers, potters and other artisans are yet to get an alternative source of livelihood as per the state policy and Action Plan, endorsed by the Supreme Court. Those at the resettlement site in Gujarat or Maharashtra or at a very small percentage in M.P. are certainly not rehabilitated, till date, as there are hundreds of families without full land, as per entitlement or amenities, yet to be attained.

When huge corruption through a massive scandal of about 5,00 to 1,000 crores, misappropriated by officials and agents in rehabilitation is under inquiry, by Justice Jha Commission, appointed by the High Court for the past 5 years, there is no way that M.P. can approve the fake rehabilitation. M.P. has allotted land only 21 families till date, that too in the past two months, while 4,000 + remain to attain their due, many of whom are cheated through fake land registries. These include hilly adivasis habited in the Satpuda and Vindhya ranges, who are to be taken special care of as per the policy and judgements. Maharashtra too is still searching and locating land to establish R&R sites, more and Gujarat’s oustees are also awaiting declaration, allotment of land and / or amenities in the original villages as well as resettlement sites.

The Narmada Water Disputes Tribunal Award and all the Supreme Court’s judgements, (1991, 2000, 2002, 2005) and the last interim order that has clearly directed full and fair implementation of the NWDTA, are to be violated once again, is there is any raise, in the dam height, at this stage. Flooding the villages, where life is on with pucca houses, shops, markets, schools, temples and mosques and lakhs of trees will be a gross injustice, against law and contempt of court. The Prime Minister himself had given a written commitment to the Apex Court on 17th April, 2006 i.e. on the 21st day of fast in New Delhi, that all the families upto 122 mts were not rehabilitated while that height was sanctioned and that rehabilitation would be complete within 3 months i.e. by June, 2006. The same has not yet happened and hence there could be no permission granted for further work at the dam.

Moreover, not one, but many committees of MoEF and the latest chaired by Shri Devendra Pandey have clearly concluded based on the documents and data that almost all the conditions in the environmental clearance are not fulfilled, but violated. Be it Gujarat on the non-compliance of CAD Plans, or Maharashtra and M.P. with targets and plans on protective / preventive measures, compensatory afforestation, health measures for all the three states.

It is, therefore, obvious that any clearance granted is only a result of political expediency. Mr. Narendra Modi since, last few months had been raising SSP issues publicly to blame or challenge the UPA Govt, which is succumbing to these pressures unnecessarily and unjustifiably. When Gujarat doesn’t have its canal network ready and not built beyond 25-30% over the last 30 years, what is the need to raise the height and fill more water to drown the valley? Why can’t the MoEF and the Narmada Control Authority under the Ministry of Water Resources compel Gujarat to complete execution of all environmental measures and building of canal network phase-wise and thereby utilize the already ponded waters?

The issue is politicized with nearing of 2014 elections, no doubt but people’s lives and livelihoods being at stake, we can’t allow such a heinous crime to be committed by flooding houses, communities, fields, and forests any more, not till all legal pre-conditions are fulfilled. We warn the NCA not to clear the raising of the dam height and also warn R&R Sub – Group to withdraw its decision. The people of the valley will compel these authorities to comply with law and are prepared to fight it tooth and nail.

Police conduct, elite reaction and the manner in which this story was reported illustrate how hard it is for a poor woman to accuse a privileged man of rape in India, writes Richa Kaul Padte

Richa Kaul Padte 22nd Jun 2013

There are many stories within this story, often manufactured, and almost entirely contradictory. Perhaps then we should begin with the story that has been told the least: the story of a 26 year old woman who was allegedly raped by her general practitioner Dr. Rustom Soonawala on 17 May at 6pm at his clinic in Mumbai. The narrative begins clearly enough: on leaving the clinic, she told her husband what had happened. At 10.30 pm the same day, an FIR under Section 376 – rape – was registered at the Khar Police Station. The following morning, two police constables accompanied the survivor and her husband to Soonawala’s residence at Dadar Parsi Colony, where she identified the doctor as her rapist. Here, however, is where the story begins to splinter.

The constables sent the couple back to Khar, and told Soonawala that he must accompany them to the police station. Choosing to travel in his own car (questions around why an immediate arrest wasn’t made or why an accused rapist is permitted his own transportation remain unanswered), Dr. Soonawala revved up his engine with a police constable in the front seat and another in the back, along with two of his sisters. Here is precisely where all coherent narratives disintegrate, because over an hour later, the police officers returned to the station, saying that Soonawala had absconded. One account says that one officer had to leave the car to let a patient inside, and the other got out to prevent Soonawala from escaping. Another suggests that there was only ever one constable involved, who was lured out of the car on the pretext that everyone was getting out — before the car sped away. Any police account, however, raises several burning questions: why was the licence plate of the car not recorded? (‘We forgot,’ say the police) Why was the control room not telephoned with a description of the car to be halted at the next signal? (‘We didn’t think of it,’ they say).

On 11 June, over two weeks after the FIR had been lodged, the still-absconding doctor and accused rapist was granted anticipatory bail. And the shock-horror-anger following last year’s Delhi gang rape was nowhere to be seen.

Speaking at a public meeting organised by the Aam Aadmi Party on 18 June in Mumbai, Justice Suresh Hospet said, ‘This reminds me of what the first CPI Chief Minister of Kerala said: If in a court of law there is a rich, well-dressed, suited and booted person standing on one side, against an ill-clad, starving poor man on the other side, the court has an inherent tendency to lean in favour of the former against the latter. This is exactly what is happening today. It is the rich against the poor.’ As a member of the upstanding Bombay Parsi community, which has always held a position of social and cultural privilege dating back to British Imperialism, Soonawala’s respectability was vouched for from all sides. From a lawyer-community with personal ties to the doctor to medical professionals (‘if this can happen to him it can happen to us’: a perverse twist in the logic of vulnerability that normally exists between doctor and patient, says Sujatha Gothoskar from the feminist collective Forum Against the Oppression of Women) to the wider Parsi community, efforts to clear the doctor’s name were aggressive and multi-pronged.

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The crux of the issue here lies not in Soonawala’s guilt or lack thereof, but in the fact that the law was prevented from taking its own course – singularly because of the social and economic standing of the accused.

Activists who had worked with Soonawala to strengthen laws against hawkers alleged that the case was fabricated by the hawker community in an act of vengeance. But the survivor is no hawker. She is a quiet, soft-spoken wife of a tailor from Orissa, with little money and no one to speak for her. In an unprecedented movement of support for a man accused of a crime that recently made every second Indian a feminist, over 300 people attended the first hearing for anticipatory bail in the Mumbai’s Sessions Court, where the victim was heckled from all sides. How does a judiciary rule in the face of such overwhelming, ‘respectable’ support?

he Order issued by the Mumbai High Court judge on 11 June was a regressive about-turn from the strides made by the Ordinance that resulted from the Justice Verma Committee Report. ‘Facts’ like ‘why didn’t she scream?’ and the 5 hour ‘lapse in time’ it took the survivor of a physical, sexual and mental assault to reach the police station took precedence over forensic evidence of semen on the examination table; an appointment book listing only the survivor’s name for the day; and clear police negligence in locating an absconding Soonawala. Other ‘facts’ cited were that the survivor was unsure about the extent of penetration, and that a forensic report dated 20 days after the incident found no traces of male DNA on her vaginal smear —factors that have been dismissed by the Supreme Court in several rape cases where the survivor is accustomed to sexual intercourse. In a note on the subject Justice Hospet writes, ‘In most…rape cases, there is the victim and the accused — and it happens in a closed room, and there are no eye witnesses.’ It comes down to what the judiciary believes. But as the evidence shows, this ‘belief’ does not exist free of classism and privilege. Aam Aadmi Party members Anjali Damania and Preeti Sharma Menon ask, ‘What if the case was reversed? What if a tailor raped a Parsi lady doctor? Would we say that he should get anticipatory bail? No, we’d say, “Arrest him and put him in jail immediately.”‘

Says Sujatha Gothoskar, ‘What [supporters of Soonawala] don’t seem to understand is that this sets such a dangerous precedent with much wider implications than the case itself…Whether you believe her or the doctor, let the law take its own course; let him be arrested.’ The crux of the issue here lies not in Soonawala’s guilt or lack thereof, but in the fact that the law was prevented from taking its own course – singularly because of the social and economic standing of the accused. Now being heard in the Supreme Court, if the current ruling is not overturned, will the Soonawala case be the new litmus test for rape cases of the future? Fast track for poor rapists, bail for the wealthy? The more support in court, harassment of the survivor and reportage from an uncritical media, the better the chance for acquittal?

If the public and media conscience and consciousness were so righteously raised by the aftermath of the Delhi gang rape, the Soonawala case shows the falseness and elitism of that consciousness to begin with. When it’s the tailor, the plumber, the masked villain in the night, the country (as represented by social media, at least) is up in arms against this ‘dishonouring’ and violent act against its women. When the culprit is ‘one of us’, the silence is chilling.

TOP ST

A 25-year-old tribal girl was allegedly raped by the helper of an air-conditioned luxury bus in which she was travelling, police today said. The accused identified as Susanta Hembram has been arrested for allegedly raping the tribal girl, resident of Mayurbhanj district of Odisha, in the moving bus on Sunday night when other passengers were fast asleep, they said.

In her complaint, the victim alleged that Hembram raped her in the rear seat of the private bus en route Jagatpur near Cuttack, between 3 to 3.30 am when there were only few passengers and all of them were asleep, City DCP S Praveen Kumar said.

Hembram is believed to be an acquaintance of the victim,who works as a domestic help in Jagatpur, on the outskirts of Cuttack city. The incident came to light when the girl was rescued by some people at Gatiroutpatna, about 5 km from Cuttack on Cuttack-Jagatsinghpur road yesterday.

The Mahila police station of the city after registering a case sent both the accused and the victim for medical examination on the day. A police scientific team is also assisting the city police in investigating the case.

The State Transport Commissioner Surendra Kumar informed that the permit of the passenger bus in which the crime was committed has been cancelled. “It is one of the primary duties of the bus staff to ensure that the passengers boarding the buses travel safely and reach their destinations unharmed,” Kumar said. Meanwhile, the Private Bus Owners’ Association condemning the incident has demanded that stringent punishment should be given to the bus helper and urged the bus owners to ensure that the credentials of the persons are verified properly before they are recruited to perform duties in the buses plying at night.

Agreeing to hear the PIL filed by a former Dean of Law Faculty of Delhi University Professor S N Singh, a bench of justices A K Patnaik and Ranjan Gogoi posted the case for hearing next week.

In his plea, Singh has alleged that such large scale spying by the US authorities is detrimental to national security and urged the apex court to intervene in the matter. He has claimed that the Internet companies are sharing information with the foreign authority in “breach” of contract and violation of right to privacy.

“As per reports, nine US-based Internet companies, operating in India through agreements signed with Indian users, shared 6.3 billion information/data with National Security Agency of US without express consent of Indian users.Such larges cale spying by the USA authorities besides being against the privacy norms is also detrimental to national security,” the petition, filed through advocate Virag Gupta, has said.

Singh has submitted that it is a breach of national security as government’s official communications have come under US surveillance as services of private Internet firmsare being used by them. He has sought directions to the Centre to “take urgent steps to safeguard the government’s sensitive Internet communications” which are being kept outside India in US servers and are “unlawfully intruded upon by US Intelligence Agencies through US-based Internet companies under secret surveillance program called PRISM”.

Though his case files are stacked across four rooms, Sanjay Parikh, the lawyer who thrust a spoke into India-focused miner Vedanta Resources‘ plans, has ensured each is marked neatly.

“This is the Kalahandi case… this is Basmati rice,” he says, as he hops excitedly from one room to another. These are famous cases – one in which the court, petitioned by Parikh, tracked delivery systems for 10 years to prevent starvation deaths; another through which India gave the US a stinging defeat on patents.

The lawyer behind these cases, however, is known only in select human rights and legal circles. It took this reporter three weeks of calls, doorstepping, and a reference from another lawyer to get an interview with Parikh. “Talk about my cases, but why a profile?” he asks at the eventual interview.

‘A balance is required’
The latest case that put the spotlight on Parikh is that of the Niyamgiri forest, where Anil Agarwal-led Vedanta Aluminum Ltd, a unit of London-listed Vedanta Resources, tried to mine bauxite for its shut aluminum plant.

On April 18, Parikh’s arguments in favour of the forest dwellers or tribals seemed to have borne fruit. The court said before allowing mining, a village body, or a Gram Sabha, representing these people, should take their opinion. “Many of the scheduled tribes and other traditional forest dwellers are totally unaware of their rights. They also experience a lot of difficulties in obtaining effective access to justice because of their distinct culture and limited contact with mainstream society,” ruled a three-judge Supreme Court bench, asking Vedanta to await a consensus among the forest dwellers.

Odisha, where the Niyamgiri hills are located, represents Vedanta’s supply chain. India has the world’s fifth largest bauxite reserves of 593 million tonnes, the majority of that in Odisha, according to a Reuters report.

The Niyamgiri debate typifies the puzzle India is faced with – how to mine minerals without hurting indigenous rights and harming to the environment. So sharp has been this debate that it has strengthened the armed Naxal movement.

Back in Parikh’s study, in a single row are stacked the files of cases that bring in money. These relate to rent disputes and yes, crime and murder cases. However, it is clear the lawyer’s heart lies elsewhere. “Somewhere, a balance is required,” says Parikh, 54, talking about the cases he is paid for, as well as his other work. “Those who are coming to you and can pay, you must ask them to pay.”

Among Parikh’s high-impact cases is one where he assisted noted lawyer Indira Jaising in arguments that led to the Supreme Court implementing a ban on use of ultrasound technology to determine the sex of foetuses. A chunk of his cases were those in which he represented environmental activists. “Sanjay has committed himself totally to defending the public interest. He represented the first case the research foundation (Research Foundation on Science, Technology and Ecology) fought to stop Monsanto’s illegal field trials of GMOs (genetically modified organisms),” says Vandana Shiva, an activist who has campaigned against patenting of seeds.

Dharma
Parikh says he was influenced into working on cases voluntarily and without payments during his training as a law intern. Born into an ordinary railway employee’s family from Rajasthan, he graduated in law from Agra University, before being selected to intern with former Supreme Court judge S Rangarajan in 1982. During the period of Emergency, Rangarajan had overturned the arrest of journalist Kuldip Nayyar. Parikh says he learnt moral courage from his mentor.

“I was quite clear there had to be a purpose to life,” says Parikh. “There is in the profession what you call dharma … (by which) the profession is a way of life.”

Parikh, whose two sons are also lawyers, admits it is not easy to comprehend the impact of a law his argument helped draft, or follow-through on its implementation. However, sometimes, one can take the next step, such as action against online advertisements on sex determination by pre-natal clinics based abroad, but targeting Indian parents.

Senior advocateK K Venugopal, who argued for Vedanta, says of Parikh: “He has been doing a lot of pro bono work. I know that I have been seeing him appear in a number of environment cases… He was not the main opposing counsel. He was one of the main ones. I was opposed by the Union of India, so the solicitor general was appearing… Prashant Bhushan was there. Parikh was there, and played a fairly significant part.”

Parikh’s argument was one of the countervailing arguments in the case – Vedanta and the state of Odisha argued in favour of the mining project. The Indian government, represented by the solicitor general, opposed the project, as did Parikh.

Significant cases
Mandatory declaration of assets and criminal record by a candidate filing nomination as Member of Parliament or Member of Legislative Assembly (In 2003, challenging Union of India)

Petition in 1995, challenging dumping of toxic waste, including ship-breaking activities. SC did not ban the entry of toxic ships into Indian waters, but said prior informed consent was necessary. It set the ball rolling for monitoring toxic waste, including that in Bhopal (challenging Union of India and Gujarat maritime board, a ship-breaking company)

Petition in 1998 challenging field trials of genetically modified Bt cotton. Field trials were stayed a few years, but India planted more than 10 million hectares of genetically modified cotton in 2011 (challenging Union of India and Mahyco, which had an association with Monsanto, the world’s largest seeds company)